Jump to content

Motion to Dismiss due to failure to prosecute...Indiana


Recommended Posts

This case is a different one that the case I just filed a response to MSJ...MANY similarities, but it is a different case.

I'm in Indiana. I'm being sued by a JDB on a private education loan. The original creditor is no longer a bank on its own...it was absorbed by a larger bank at some point several years ago. I was served in March 2013 (correctly according to the state of Indiana), filed my answer, and Plaintiff filed Discovery. I answered their Discovery on time, and filed a Discovery of my own. They filed for and were granted an extension of time to produce the documents I had asked for (proof of transfer of ownership from the OC to JDB). They sent me a "Pool Supplement" in that extended time frame, however, it was incomplete and non-specific. I sent them a letter stating as such, and asked for evidence which specifically named me or an account associated with me. This letter was sent in September 2013. I have not heard from them since. They have not moved forward with the case, nor have they completed my request.

According to Indiana Trial Rule 41(e), "Whenever there has been a failure to comply with these rules or when no action has been taken in a civil case for a period of sixty [60] days, the court, on motion of a party or on its own motion shall order a hearing for the purpose of dismissing such case."

So, my questions are: Is this what I should do? Can I filed a motion to dismiss with prejudice based on the fact that they have failed to prosecute for a year at this point? If this is what I should do, can someone point me in the direction of how to word such a motion? What is the process for doing this?

Link to comment
Share on other sites

You would put it on pleading paper (court paper with all the stuff on top like your complaint) then in bold title it "motion to dismiss"

Then a new paragraph labeled statement of facts. List everything that has happened numbered in the case thus far.

New paragraph label argument.

Then argue your case. The fact they haven't participated in your discovery, you sent them a meet and confer, they have not taken any action since xx/xx/xxxx, quote the court rule, and I would also search out some case law to support the things you say in your argument. You can search on google scholar or http://leagle.com/decision/In%20FDCO%2020131105937.xml/WHITE%20v.%20SHERMAN%20FINANCIAL%20GROUP,%20LLC

New paragraph, list your prayer for dismissal.

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.